It is so frustrating. These questions embody the logical fallacy that pervades the debate on banning vaping in public places. The use of the law is not about a person’s preferred vaping policy in a given place. It is about coercion – the overriding of the preferences of owners and managers of public places by a single policy for the jurisdiction.

This is poorly framed because it implicitly invites the reader to consider whether they want vaping where they visit – and many will not. The question above implies that non-vapers will have to endure clouds of e-steam in order to help people quit smoking. But that is not actually the choices offered by a no-vaping law and its alternative. A better question would be:

Who should decide whether to ban or allow vaping in public places?

The government should ban vaping in public places by law

Owners or managers of public places should decide their own policy

In practice, with no vaping law, lots of places will not allow vaping or it will seem culturally inappropriate to vapes – these are not affected by a no-vaping law. But what about the places that do want to allow it – these are the ones affected by law. Let’s imagine owners and managers decide the following:

A pub wants to have a vape night every Thursday

A pub wants to dedicate one room where vaping is permitted

In a town with three pubs, one decides it will cater for vapers, two decide they will not allow vaping

A bar manager decides on balance that his vaping customers prefer it and his other clientele are not that bothered – he’d do better allowing it

A hotel wants to allow vaping in its rooms and in its bar, but not in its restaurant, spa, and lobby

An office workplace decides to allow vaping breaks near the coffee machine to save on wasted smoking break time and encourage smokers to quit by switching

A care home wants to allow an indoor vaping area to encourage its smoking elderly residents to switch during the coming winter instead of going out in the cold

A vape shop or pharmacy is trying to help people switch from smoking and wants to demo products in the shop

A drop in centre for homeless people want to allow it to ease the conversation between users and care-workers

A day centre for young mothers allows vaping instead of smoking to help them feel comfortable

What’s wrong with this? Why should these quite reasonable and nuanced judgments be blocked by an overriding law? I’m not saying these are good or bad policies, just that they (hypothetically) reflect the preferences of the owners and managers of the places concerned and their judgement of what is right for their clientele and them. So the question to those who want a law is: why should these and thousands of similar nuanced and reasonable micro-decisions be over-ridden by a single macro-decision made by law? It is not: why should vaping be allowed everywhere?

The case for overriding the choices of owners and managers. The only reason for using law to override these preferences can be if there are material harms associated with vapour exposure, and then a bystander-protection and occupational safety rationale kicks in – and these have a stronger ethical basis than using state power to impose rules governing issues of etiquette and minor nuisance. And even these principles are not that strong where those exposed can make an informed choice. But I think we need a fairly high bar before the law is brought in to determine what choices are made in bars and restaurants etc and that owners and operators are making bad/wrong decisions. If we allow legal prescription to be justified on a highly speculative assessment of risk (which actually currently suggests no material risk at all – see Burstyn, I 2014 for example), where does this sort of state intervention in private choices end?.

Risk aversion? Perhaps a case can be made by invoking an extremely high degree of collective risk aversion? I say ‘collective’ because individuals can take risk-aversive action by not going to places that worry them or taking responsibility for their children. Using a law to ban vaping when there is no material evidence of harm imposes a very high implicit level of risk aversion on all of us even if we would be perfectly happy in a place that allows vaping. Applied to real world living, we would simply unable to function with that level of risk aversion – and society would permit almost no innovation.

Maybe a precautionary approach? Perhaps we should invoke the precautionary approach because we don’t yet know the full extent of the risks. While a high a degree of risk aversion might sound pleasingly cautious and responsible, I believe it is quite likely to be harmful and irresponsible. In this case, excessively precautionary action may have unintended consequences – for example causing vapers to be excluded from premises to join smokers thereby promoting to relapse to smoking or to see less advantage in switching in the first place. Smokers often report feeling hounded by authorities and wider society. Part of the appeal (‘value proposition’) of vaping is to reduce the stigma of being hounded and demonised – that doesn’t mean vapers want to vape everywhere and at all times, but they would like to be able to find places that cater to them and make them feel welcome. A pervasive legal ban degrades that part of the vaping value proposition and can, in effect, be seen as a protection of smoking and the cigarette trade from a competitive low-risk pro-social alternative. Seemingly cautious action could thus be reckless and counterproductive both in public health terms as well as for civil liberties.

Children? Even without law, in reality pretty well all places where children congregate (schools etc) will not allow vaping – but that will be their choice and school authorities will make that decision. But should the law go further? In my view, it is wrong to bend adult society out of shape in order to hide it from the view of children. If parents for whatever reason don’t want their children in a pub that allows vaping, then parents can choose not to take them to that pub – it is not a reason to impose the force of law to ban vaping in all pubs. There are some things that you really don’t want children to see (mostly readily available on the Internet), but in the grand scheme of child-protection worries a reasonable adult behaviour – especially one that is an alternative to smoking – is not something to hide or worry too much about. I think there is a tendency among some activists to exploit children, using them as a kind of human battering ram to break down genuine objections to policies that are really about controlling adult behaviour based on judgmental prohibitionist instincts. Think of the children? Yes, of course, we should think of the children – but with a view to them growing up tolerant and thoughtful about others, and not as an activist tool for bullying grown-ups.

Well it STARTED with the intrusion into the ownership of private property – the smoking ban. This gave no choice to any business to allow or deny smoking on their own property. It drove smokers outside into full view, instead of leaving the owner of the property to allow smoking, where, with modern technology, smokers could easily have had their own comfortable space.

The smoking ban is an evil thing because of its violent assault on people. There will be no end to it – Tobacco Control has offered “the template”. It continues on to get Governments/Institutions to ban smoking in private and personal places and areas where people have no options but to submit. And it has done it with malice aforethought.

Thanks for another good post – only I wish it was about smoking and how all the points you raise could be used for smokers’ consideration too. Without the smoking ban, owners, smokers and vapers would simply get on with it. If people feel they are going to drop dead from vapour or smoke, THEY have the choice to go somewhere else!

Think of the children !
I think it’s about time someone thought about all the children that are extremely happy that their mums and dads have given up smoking by VAPING !
Great article as usual.
Keep them coming mate us Aussies love them.

Despite now a couple years in which to read and digest all the articles and comments regarding vaping, the Press still fails to understand it. I’m genuinely baffled. What intelligent person would approve the wording of that poll; and why can’t journalists see that vaping is recreational nicotine use, not some sort of medical treatment?

The “think of the children” mantra is bogus, in my humble opinion. “Think of the children” should be read as “think of my funding”, or in some instances, possibly, “think of my predilection, or not”.

If e-cigs and vaporisers were left to flourish, cigarette smoking would decline rapidly, quickly overtaken by the superior product. Vaporisers are a consumer product. They are out of the remit of public health and tobacco control, the inclusion, by force, is an indication that the inclusion is funding driven.

Governmental control is funding driven, considerable loss of tobacco revenue is a serious matter, for the fiscally incompetent. So, “think of the children” is used, as it would be vote losing to say “we are fiscally incompetent sycophants”.

Remember, the test for toilet bowls stipulated that sheets of newspaper were used to test the flushing action. Now the test has changed, possibly showing the decline in the relevance of newspapers, in some sectors. Now they just print …

You nicely summarize the strongest argument against smoking bans. Oh yeah… and against vaping bans too.

Indeed, the point where you seek a wedge between those — health effects — seems rather tenuous. What is your basis for claiming stronger ethical justification for health-based bans compared to aesthetics and other motivations? It is not a descriptive observation: We ban public nudity for aesthetic reasons. We allow teenagers to drive, a serious health threat. We do not allow workers to go into rooms where someone is smoking (often by just banning the option), though the risk is somewhere between zero and trivial, but do allow them to go into mines. The claim is not based on any defensible ethical system (the “public health” ethical system is indefensible, as I have analyzed at length (e.g., http://antithrlies.com/2014/09/21/dear-public-health-the-public-despises-you-so-you-are-probably-doing-it-wrong/ ). How is this not just a way to try to gerrymander vaping bans onto a different side of a line from smoking bans?

(Minor point: The economic concept of risk aversion can only be said to exist when there are three possible choice available, not two. If there are only two choices and someone seems to be paying far too high a price to avoid a potentially harmful exposure, that is probably a case of overestimating risks or being extremely averse to the exposure, rather than being averse to risk per se.)